CIVIL PROCEDURE MBE

Question 1

A cyclist from State A filed a negligence action in federal court in State A against a driver from State B following an accident. A jury of 12 people returned a verdict for the cyclist and found that the cyclist was not contributorily negligent. After receiving the verdict, the presiding judge, on her own motion, polled the jurors individually.

The judge’s polling revealed that the jury verdict was not unanimous in deciding that the cyclist had exercised due care and was not liable under contributory negligence. As a result, the judge ordered a new trial. The cyclist filed a timely notice of appeal.

Is the appellate court likely to hear the cyclist’s appeal?

Answer 1

D is correct. The judge ordered a new trial in this case, which is not considered a final order, which means the court of appeals lacks jurisdiction

Question 2

What’s the polling the jury and can a court do that with the parties’ requests?

Answer 2

Yes, Federal Rule of Civil Procedure (FRCP) 48(c) allows for jury polling, stating that, “[a]fter a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity or lack of assent by the number of jurors that the parties stipulated to, the court may direct the jury to deliberate further or may order a new trial.”

Question 3

The attorney for a plaintiff in an action filed in federal district court served the defendant with the summons, the complaint, and 25 interrogatories asking questions about the defendant’s contentions in the case. The interrogatories stated that they were to be answered within 30 days after service.

The defendant is likely to succeed in obtaining a protective order on which of the following grounds?

Answer 3

Interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan.

Question 4

A woman sued her former employer in state court, asserting age and sex discrimination claims under both state and federal law. The woman’s attorney had recently been embarrassed in court by the judge to whom the case was assigned. Wishing to avoid difficulties with the judge, the woman’s attorney promptly removed the case to federal court on the basis of federal-question jurisdiction. The employer’s attorney has timely moved to remand.

How is the federal court likely to proceed?

Answer 4

Remand the entire case.

A is correct. To remove a claim to federal court, several requirements must be met. First, the federal court must have subject-matter jurisdiction over the claim such as diversity or federal question jurisdiction. Additionally, a defendant seeking to remove to federal court must file, within thirty days of receipt of the initial pleading/summons, a notice of removal in the district court where the state action is pending. As that rule suggests, removal is a right exercised by the defendant—plaintiffs may not remove to federal court. Here, the plaintiff’s attorney sought removal, which is improper, and the federal court should remand the entire case as improperly removed

Question 5

A shopper sued a grocer in federal court for violation of the Federal Food Drug and Cosmetics Act. In its pre-answer motion, the grocer raised the defenses of lack of personal jurisdiction and lack of subject-matter jurisdiction. The court denied the motion. Thereafter, the grocer realized that it arguably had available to it the defenses of improper venue and failure to join a required party. The grocer then filed an answer to the shopper’s complaint raising these two additional defenses for the first time.

Is the court likely to consider the grocer’s defenses?

Answer 5

Yes, but only the defense of failure to join a required party, not the defense of improper venue, because it is waived.

B is correct. Certain defenses must be presented in the first pre-answer motion, or if there is no pre-answer motion, then in the answer. The defenses that must be presented in the first pre-answer motion, or if there is no pre-answer motion, then in the answer, (to not be waived) are lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. The defense of improper venue must be raised in the first motion or else it is waived. However, the defense of failure to join a party is not one of the defenses that is automatically waived and may be raised by a later motion.

Question 6

Question
A man from State A brought a diversity action against a computer company in a federal court in State A on a breach of warranty claim. The computer company raised an affirmative defense that the man’s suit is barred by a final settlement reached in a class action in a federal court in State B where the man had been one of the 5,000-member class. The class action raised the same breach of warranty claim the man is alleging in this case.

The computer company filed a motion to dismiss the man’s lawsuit, arguing that the prior class settlement is binding on the man because he likely received notice of the class action and did not opt out of the settlement within the time allowed. The man argued that the settlement amount was insufficient to adequately compensate him as a class member.

Is the court likely to grant the computer company’s motion to dismiss?

Answer 6

Yes, because the man may not collaterally challenge the otherwise valid class action settlement.

B is correct. The man is claiming the class settlement was insufficient to compensate him personally, and he is attempting to get further compensation for the same claim. This amounts to a collateral challenge to an otherwise valid class settlement, with no evidence that the action did not adequately represent the interests of absent members. Full faith and credit prevents the man from collaterally attacking the valid class settlement in a subsequent suit.

Question 7

A patent holder brought a patent infringement action in federal court against a licensee of the patent. The patent holder believed that a jury would be more sympathetic to his claims than a judge, and asked his lawyer to obtain a jury trial.

What should the lawyer do to secure the patent holder’s right to a jury trial?

Answer 7

A. File and serve a complaint that includes a jury trial demand

The Seventh Amendment provides the right to a jury trial, but only in federal court. In suits at common law, the right of a trial by jury shall be guaranteed. Federal Rule of Civil Procedure (FRCP) 38 provides that the right of a trial by jury as declared in the Seventh Amendment is preserved for the parties. A party who wishes for a jury trial on a particular issue must file a written demand with the court and serve it on all parties. The demand may be included with a pleading. Failure to properly file and serve the demand within 14 days after the service of the last pleading directed to that issue constitutes a waiver by that party of any right to trial by jury.

Question 8

A manufacturer sued a buyer in federal court for failing to make timely payments under the parties’ sales contract. The case was tried to the court solely on documentary evidence. Immediately after the close of the evidence, the judge announced from the bench, “Judgment shall be entered for the manufacturer,” and judgment was so entered. The buyer has appealed the judgment.

What is the buyer’s best argument for persuading the appellate court to reverse the judgment?

Answer 8

The trial court erred by not providing findings and conclusions.

judge may enter a judgment as a matter of law against a party on any issue whenever there are sufficient facts to resolve the issue, and the party has been fully heard on the issue. The judge may enter judgment as a matter of law against a party on that claim or defense if the issue is dispositive. The judgment must be supported by findings of fact and conclusions of law.

In this case, at the close of evidence, the judge made a judgment as a matter of law against the buyer. The evidence was solely documentary; therefore, the judge had all the information in the record and did not need to assess the credibility of any witnesses. The judgment was given at the close of evidence, and both parties had been heard on the issues. Thus, the judge was properly able to make a judgment as a matter of law. However, the judgment must be supported by findings of fact and conclusions of law. Therefore, the best argument the buyer can make to the appellate court is that the judge erred by not providing adequate findings for her conclusion.

Question 9

A contractor, a citizen of State A, sued a man, a citizen of State B, in State B state court. The one-count complaint alleged breach of contract, requested damages in the amount of $79,000, and demanded a jury trial pursuant to State B rules that provide the right to jury trials in contract disputes. The man argued to the state court judge that the contractor is not entitled to a jury.

Is the contractor entitled to a jury trial?

Answer 9

Yes, because State B law provides for jury trials in breach of contract actions.

D is correct. The right to a jury trial in civil cases pursuant to the Seventh Amendment has nerver been applicable to state trials. Nevertheless, because this action is in State B court and State B rules provide the right to a jury trial in contract disputes, the contractor is entitled to a jury trial here.

Question 10

A plaintiff sued a defendant in federal court for injuries arising out of an accident involving the parties. The plaintiff alleged and presented evidence at trial demonstrating that her injuries had left her legs permanently paralyzed. The jury found in favor of the plaintiff and awarded her $5 million in damages. Two months after the court entered judgment, the defendant was given a videotape made that day showing the plaintiff jogging with her doctor.

What is the best way for the defendant to seek relief from the judgment?

Answer 10

C. Move for relief from the judgment on the ground that the plaintiff committed a fraud in obtaining damages for permanent injuries.

Newly discovered evidence is a ground, listed in the Federal Rules, under which a party may seek relief from a final judgment or order. However, the evidence must be of the sort that could not have been discovered in time to move for a new trial. In this case, the plaintiff presented evidence that she was permanently paralyzed. The fact that she was not actually paralyzed is not “new evidence,” rather it was a fraud.

Question 11

A teacher brought a successful lawsuit against a charter school in State A federal court. The judge found that the charter school had violated federal employment laws and awarded money damages to the teacher in the amount of $182,000. The charter school appealed and lost.

The Federal Rules of Appellate Procedure permit an appellate court to punish frivolous appeals by assessing extra costs. Under State A law, there is an automatic 15% penalty to an unsuccessful appeal of an award of money damages.

Is the appellate court required to impose the 15% penalty?

Answer 11

D.No, because only the Federal Rule of Appellate Procedure applies.

This is a federal question case as it arises under federal employment laws. Because this is not a diversity lawsuit, no Erie analysis is necessary. Only federal law applies, so the court may only use the Federal Rule of Appellate Procedure (FRAP), not the State A law penalty.

Question 12

A former employee sued a corporation, her former employer, in State A state court, alleging that she was illegally fired after bringing a worker’s compensation claim. The employee is a citizen of State B and the corporation is incorporated in State C, with its principal manufacturing plant in State B, its second-largest plant in State A, and its board of directors located in State D. The employee is seeking over $75,000 in damages. Under State A’s worker’s compensation law, as interpreted by State A courts, this claim “arises under” State A worker’s compensation law.

The corporation removed the case to the federal district court in State A, invoking diversity jurisdiction. Within 30 days after the filing of the notice of removal, the employee moved to remand back to state court.

Should the court grant the employee’s motion to remand?

Answer 12

Yes, because a worker’s compensation action in state court, arising under state law, may not be removed.

C is correct. The issue here is the removal exception for state law worker’s compensation claims. Because the former employee brought a worker’s compensation claim in State A, where the case was filed, the case was nonremovable even though diversity jurisdiction existed. Thus, the court should grant the motion to remand.

Question 13

Question
A baseball player sued an agent in federal court in State A for breach of contract. The agent argued that the contract between the player and the agent was severed due to extensive injuries that the player sustained. In accordance with his duty to disclose, the agent stated that he intended to call Dr. Jones as an expert witness to testify about the extensive injuries that the baseball player suffered.

During discovery, six months before trial was set to begin, the baseball player asked the court to intervene and compel the agent to disclose whether he intends to call any other expert witnesses with respect to the same issue.

Is the court likely to intervene and compel disclosures from the agent?

Answer 13

D No, because the player will be required to wait until he receives the agent’s supplementary disclosures.

Parties must disclose to the other parties the identity of any witness that the party may use at trial to present evidence. The duty to disclose carries over into supplementary disclosures that must be made prior to trial. Therefore, because the trial is still months away, allowing time for additional discovery, the baseball player will likely have to wait for the agent’s supplementary disclosures before the court will intervene.

Question 14

Expert Information - testifying and not testifying

Answer 14

Testifying
Must provided ID
Expert must prepare report

Non-testifying
Discoverable only in exceptional circumstances

Duty to supplement
` after discovery
duty to supplement incomplete or wrong info `must be done in timely manner

Question 18

A plaintiff filed an action in federal district court and served the defendant with the summons and complaint. The defendant moved to dismiss the complaint for failure to state a claim.

Instead of opposing the motion to dismiss, the plaintiff voluntarily dismissed the action and filed a new action, alleging the same claims but also addressing the pleading defects outlined in the defendant’s motion to dismiss. The defendant then moved to dismiss the second action, and the plaintiff again voluntarily dismissed the second action instead of filing opposition papers.

The plaintiff then filed a third action, alleging the same claims but also including additional allegations that were responsive to the defendant’s second motion. The defendant has moved to dismiss the third action; the plaintiff opposes the motion.

Is the court likely to grant the defendant’s motion?

Answer 18

D Yes, because the plaintiff’s previously dismissed actions asserting the same claims operate as an adjudication on the merits.

Question 19

A state decided to enact a law prohibiting internet search engine companies from tracking users’ searches and selling that information to advertisers. Congress recently passed a similar federal law that applies to the interstate sale of similar information. The state passed the bill with language identical to the federal statute, except without the limitation to interstate sales of information.

A resident of the state sued a non-diverse internet search engine company in federal district court, alleging the company violated the state law by tracking the resident’s computer searches and selling that information to advertisers. The resident claimed federal question jurisdiction and the company moved to dismiss the case for lack of jurisdiction.

Should the court grant the company’s motion to dismiss?

Answer 19

D. yes, because the resident’s claim does not concern a federal question.

The court should grant the company’s motion to dismiss because the resident’s claim is created by state law and does not concern a federal question. The fact that the state used the federal statute as the basis for passing the law does not itself establish federal question jurisdiction because the federal question JX must be show on the well-pleaded complaint

Question 20

An employee, a citizen of State A, sued his employer, a corporation from State B, in federal district court in State B. The employee works in the corporation’s factory located in State B. His complaint is seeking $125,000 in damages for the corporation’s alleged violation of the Fair Labor Standards Act, a federal law that requires higher wages to be paid for overtime work.

The corporation filed an answer with a single counterclaim, alleging that the employee took $2,500 worth of the corporation’s tools in violation of State A’s wrongful conversion statute. The employee then filed a motion to dismiss the corporation’s counterclaim.

Should the court grant the employee’s motion to dismiss the counterclaim?

Answer 20

C. Yes, because the court does not have jurisdiction over the counterclaim.

he corporation’s counterclaim is permissive because it alleges a violation of State A tort conversion law, which is not based on the same transaction as the original claim (unpaid overtime under the Fair Labor Standards Act). The counterclaim does not have an independent basis for subject-matter jurisdiction in federal court because it does not raise a federal question or satisfy the $75,000 amount in controversy requirement for diversity (alleging only $2,500 in converted goods). Without the requisite independent basis for jurisdiction, the court should grant the employee’s motion to dismiss the counterclaim.

Question 21

Question
A man brought a federal diversity action against his insurance company, alleging that the company had breached its duty under his insurance policy by refusing to pay for his medical expenses resulting from a mountain-biking accident.

At the jury trial, the man presented evidence that he had paid all premiums on the insurance policy and that the policy covered personal-injury-related medical expenses arising from accidents. After he rested his case, the company presented evidence that a provision of the policy excluded payment for injury-related expenses resulting from an insured’s “unduly risky” behavior. The company also presented a witness who testified that the accident had occurred in an area where posted signs warned bikers not to enter. The man did not cross-examine the witness.

After resting its case, the company moved for judgment as a matter of law.

Should the court grant the motion?

Answer 21

B. No, because whether the man’s behavior was unduly risky is a question of fact for the jury to resolve.

he motion should be denied because a reasonable jury COULD have legally sufficient evidence to find for the man on this issue by determining that the company failed to meet its burden to prove that the man acted with “unduly risky” behavior. The only testimony about the sign stated that it warned bikers not to enter, with no additional evidence that the warning on the sign was due to safety concerns (i.e., it could have been to warn against trespassing).

Question 22

A football team entered into a 10-year lease with a city for use of the city’s athletic stadium. Five years into the lease, the team threatened to leave the stadium and move to another city.

The city sued the team in federal court, seeking a permanent injunction to prevent the team from breaching its lease and leaving. In its answer, the team included a counterclaim seeking $10 million in damages for losses caused by the city’s alleged failure to properly maintain the stadium, as the lease required. The team demanded a jury trial on the counterclaim.

The city moved to try its claim for a permanent injunction before the trial on the team’s counterclaim. The team objected and moved that the jury trial of its counterclaim be held before the trial of the city’s injunction claim.

How should the court rule on the parties’ motions?

Answer 22

A. The court should first hold a jury trial of the team’s counterclaim, and then a nonjury trial of the issues remaining in the city’s claim.

A is correct. The issue here is two-fold: (i) how should the court rule on the opposing parties’ motions regarding the order of the trials; and (ii) which of the claims should be tried by a jury? The right to a jury trial is preserved by the Seventh Amendment for all suits of common law where the amount in controversy exceeds $20. The determination of which claims are available at law or equity, historically, turns on what claims were available in equity in 1791. If legal and equitable claims arising out of the same common facts are joined, the legal claim should be tried first by the jury and then the equitable claim to the court. In this case, there is a legal claim, the team’s damages claim, and an equitable claim, the city’s injunction. The court should, therefore, first hold a jury trial of the team’s counterclaim and then a nonjury trial of the city’s claim.

Question 23

A biker filed a lawsuit against a driver in state court in State A, seeking compensation for damages incurred in a collision. The driver defended on the ground of contributory negligence, a full defense under State A law. The jury rendered a general verdict for the driver, thereby not identifying its specific findings. A doctor, who was also injured in the same collision, subsequently filed a jurisdictionally valid diversity lawsuit against the driver in State A federal court.

Will preclusion prevent litigation of the negligence claim in the doctor’s lawsuit?

Answer 23

D is correct. The doctor’s lawsuit against the driver will not be subject to issue or claim preclusion. It is unclear in the first lawsuit what the jury decided, and the doctor was not a party in, nor was he in privity with any party from, the first lawsuit.

No, neither issue preclusion nor claim preclusion will apply because of the first lawsuit.

Question 24

A day before the applicable statutory limitations period expired, a worker filed a federal diversity action for defamation against her former employer, alleging that the employer had falsely and publicly accused her of stealing trade secrets. In describing the events that led to the false accusations, the complaint quoted a statement of a competitor made to the employer about the worker’s alleged theft.

During discovery, the worker deposed the competitor. One week after discovery closed, the worker moved to amend the complaint to add the competitor as a defendant. The competitor opposed the motion on the ground that the statutory limitations period had expired.

Is the court likely to grant the motion?

Answer 24

B is correct. Courts may deny leave to amend when the claim to be added is futile. Here, the claim is futile on limitations grounds unless relation back applies. Under Federal Rule of Civil Procedure (FRCP) 15, relation back of amendments that add a party will be permitted if the failure to name the party is the result of a mistake in identity. The facts provide that the worker’s failure to name the competitor in the original complaint was not due to a mistake of identity, but was instead a strategic choice. Thus, the amendment does not relate back and, since the claim against the competitor comes after the applicable limitations period expired, the claim is futile.

No, because the amendment would not relate back and thus would be futile.

Question 25

A driver filed a diversity action against a mechanic in federal court in State A. The mechanic was served with a complaint and summons by a 23-year-old law student. The student is unknown to both the driver and the mechanic and is working during the summer to pay for tuition.

What is the mechanic’s best response to the driver’s complaint?

Answer 25

Answer the complaint within 21 days, and should not include an affirmative defense of insufficient service of process.

Question 26

A resident brought a civil rights action in federal district court alleging false arrest against a police officer who ordered her to remain in her apartment after the resident had a confrontation with her neighbor. The case proceeded to trial, and at the close of evidence, the resident filed a motion for judgment as a matter of law. The court denied that motion and the jury returned a verdict in favor of the police officer.

The federal district court entered judgment on the verdict in favor of the officer. After trial, the resident failed to renew her motion for judgment as a matter of law but appealed the verdict on the sufficiency of the evidence.

Which of the following actions may the appellate court properly take

Answer 26

c. C
Affirm judgment for the police officer, because the resident’s failure to renew her motion for judgment as a matter of law after trial forfeited this contention on appeal.

Question 27

Question
Ten months after surgery in a hospital, a patient who had suffered complications from the surgery sued the surgeon and the hospital in federal court for medical malpractice, seeking $750,000 in damages. Timely personal service was made on the surgeon and the hospital. Three months later, during discovery, the patient learned that the hospital was owned by a national health-care company and moved to amend the complaint to substitute the company for the hospital.

The company moved to dismiss, arguing that the forum state had enacted a one-year statute of limitations for medical malpractice actions and that the company had been served after the limitations period had expired. The company also noted that the state’s highest court has interpreted the limitations statute as forbidding any relation back of amendments adding parties in medical malpractice actions. The patient argued that the Federal Rules of Civil Procedure control, and that they allow relation back under the circumstances of this case.

Which law governs whether relation back will be permitted under these circumstances?

Answer 27

Federal law, because the Federal Rules of Civil Procedure govern over conflicting state rules that deny relation back.

The Federal Rules of Civil Procedure (FRCP) prevail over conflicting state rules unless it can be found that the federal rule at issue was promulgated in violation of the Rules Enabling Act. See Hanna v. Plumer, 380 U.S. 460 (1965). The Act authorizes the Supreme Court to prescribe federal procedural rules so long as they do not “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). To date, no federal rule has been found to be in violation of the Act.